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Top EPA air lawyer says power plant rule on firm legal ground

Source: Jean Chemnick, E&E reporter • Posted: Tuesday, July 15, 2014

U.S. EPA’s proposal for existing power plant greenhouse gases rests on a firm legal foundation of years of field research and decades of agency rulemaking precedent, EPA’s top lawyer for air quality issues told a room full of attorneys this afternoon.

Joe Goffman said in remarks at an Environmental Law Institute event in Washington, D.C., today that his agency has had a lot of experience using the Clean Air Act to require pollution reductions from the power sector, having successfully used Section 111 to set “best system of emissions reduction” on 60 prior occasions.

And the June 2 draft rule “is more like other pollution controls and standards than it is unlike them,” including rules like a 2011 mercury and air toxics standard that has withstood court challenge, he said.

As with previous rules, the greenhouse gas proposal requires power plants to make reductions on a per kilowatt basis and sets a deadline for them to do so.

If anything, Goffman said, the rule’s “systemwide” structure would afford states “more temporal and substantive latitude” when crafting their implementation plans to be submitted to EPA. The agency’s proposal sets targets based on reductions that it deems to be possible for states from four “building blocks” — onsite reductions, switching to natural gas, zero-carbon energy and demand-side efficiency.

But it allows states wide discretion when determining how those targets would be achieved and provides states with options to apply for extensions to the proposal’s 2016 deadline to submit plans, Goffman said. States would also take the lead in proposing “check in points” to allow EPA to measure whether states are on track to meet their goals.

Goffman’s appearance comes after nine states signed on to an industry lawsuit last month questioning whether EPA has authority to regulate greenhouse gases from existing utilities at all — given that the same units are being regulated for hazardous emissions.

And several states have already enacted laws that seek to limit state implementation plans to require them to be less stringent than the federal draft rule.

Goffman reaffirmed what EPA officials have said before — that the agency has the authority to impose federal implementation plans on states that do not submit approvable plans by a set date.

“The way we’re looking at that now is that we at some point have an independent decision about whether and how to implement that authority, and we’re still on the prospective side of making those decisions,” he said.

Goffman also said that stakeholders do not appear to be interested in a model rule, which would act as a “plug and play” option that states could sign on to. Some environmental groups have urged EPA to offer a model federal implementation plan to show states what would happen if they did opt not to propose an approvable state plan, but the agency has shown little interest in doing so.

Most of the questions EPA is fielding from states have to do with how state intensity targets were set and how reduction efforts would be credited, Goffman said. He said the agency is not concerned that a few states like Kentucky and West Virginia have enacted legislation aimed at limiting the rule.

“What matters is what happens and what we see at the time compliance plans are supposed to come in under the final rule,” he said.